Opinion
3:19-cv-175
05-08-2020
BLAINE KOBY GHOLSON, Plaintiff, v. BARRY R. SMITH, et al., Defendants.
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the Court dismiss this civil action with prejudice based upon Plaintiff's failure to prosecute.
II. Report
A. Background
Plaintiff, Blaine Koby Gholson, is a Pennsylvania prisoner who has been housed at SCI Houtzdale since April 2019. Prior to his transfer to that facility, he was housed at SCI Pine Grove.
On January 13, 2020, the Court issued an order (ECF No. 4) granting Plaintiff's motion for leave to proceed in forma pauperis and directing the Clerk of Court to file the Complaint. (ECF No. 9). Plaintiff named as defendants thirty-one individuals who worked at either SCI Pine Grove or SCI Houtzdale. He claimed that one or more of the defendants violated his rights under the First, Fourth, Eighth, or Fourteenth Amendment because they were deliberately indifferent to his medical needs, disregarded threats to his safety, retaliated against him, assaulted him, subjected him to excessive force and oppressive living conditions, and interfered with his mail. Underlying all of Plaintiff's claims is his allegation that defendants violated his civil rights because they were engaged in a plot to kill him for purposes of collecting the proceeds of a fraudulent life insurance policy taken out in his name.
The Court mailed its January 13, 2020 order to Plaintiff at his address of record. On January 29, 2020, the order was returned to the Court because Plaintiff refused to accept this mail from the Court on three separate dates. The Court mailed the order to Plaintiff a second time on January 30, 2020.
The Court also issued its Standing Practice Order for Pro Se Civil Rights Cases (ECF No. 5) on January 13, 2020, which directed Plaintiff to complete and provide the Court with a U.S. Marshal 285 form, a Notice of Lawsuit and Request for Waiver of Summons form (AO 398), and a Waiver of the Service of Summons form (AO 399) for each defendant named in the Complaint. Plaintiff did not comply with that instruction or otherwise communicate with the Court.
On March 16, 2020, the Court entered another order (ECF No. 13) advising Plaintiff that the Court will not order service by the U.S. Marshal until all required forms are completed by Plaintiff and returned to the Court. The Court provided Plaintiff with blank copies of the required service documents and ordered him to complete and provide them to the Court for each named defendant in the Complaint on or before March 31, 2020. The Court further advised Plaintiff that his failure to comply with the order would be construed as indicating his desire not to continue the prosecution of this case.
Plaintiff did not comply with the Court's March 16, 2020 order or otherwise communicate with the Court. Therefore, on April 10, 2020, the Court issued an order (ECF No. 14) directing Plaintiff to show cause by April 27, 2020 why this civil action should not be dismissed for failure to prosecute. The Court advised Plaintiff that this action cannot proceed if he refuses to comply with Court orders and that his continued failure to do so will be construed as indicating his desire to discontinue prosecution of this case.
Plaintiff did not file a response to the Court's show-cause order. Therefore, there is every indication that he has abandoned his prosecution of this case.
B. Discussion
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim, and under this Rule, a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order. See, e.g., Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994). In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper under Rule 41(b):
(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.Id. at 868 (emphasis omitted).
There is no "magic formula" or "mechanical calculation" to determine whether a case should be dismissed for failure to prosecute. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). None of the Poulis factors are dispositive and not all of them need to weigh in favor of dismissal before dismissal is warranted. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Rather, the Court must "properly consider and balance" each of the six factors based on the record. Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). It must also analyze the factors in light of the "strong policy favoring decisions on the merits." Id.
The first, third, and fourth Poulis factors—the extent of Plaintiff's personal responsibility, his history of dilatoriness, and whether his conduct is willful—each weigh heavily in favor of dismissal. Plaintiff has repeatedly failed to comply with the Court's orders or otherwise communicate with the Court. He is proceeding pro se and is solely responsible for his own conduct. See, e.g., Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002); Winston v. Lindsey, No. 1:09-cv-224, 2011 WL 6000991, *2 (W.D. Pa. Nov. 30, 2011); see also Quadr v. Overmyer, 642 F. App'x 100, 103 (3d Cir. 2016) (the district court correctly concluded that the plaintiff's actions were willful when he would not accept mail from the court, failed to respond to a motion to dismiss, and repeatedly missed deadlines).
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. "Examples of prejudice include 'the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.'" Adams, 29 F.3d at 874 (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). Although this factor does not weigh heavily in favor of dismissal at this time, it is not neutral either. Plaintiff's consistent refusal to comply with Court orders and his complete failure to communicate with the Court frustrates and delays resolution of his claims against the defendants. Mack v. United States, No. 3:17-cv-1982, 2019 WL 1302626, *1 (M.D. Pa. Mar. 21, 2019) (plaintiff's continued failure to communicate with the district court and inaction "clearly prejudices the Defendants who seek a timely resolution of the case."). Thus, the second Poulis factor weighs at least slightly in favor of dismissal.
The fifth Poulis factor requires the Court to consider the effectiveness of sanctions other than dismissal. Under the circumstances presented here, where Plaintiff has refused to accept the Court's mail, repeatedly has failed to comply with its orders, has failed to communicate with the Court, and appears to have abandoned the litigation, alternative sanctions would not be effective. Bowie v. Perry, No. 1:19-cv-13, 2019 WL 2412488, *2 (W.D. Pa. May 13, 2019) (Lanzillo, Mag. J.) ("alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court."), Report and Recommendation adopted by, 2019 WL 2410796 (W.D. Pa. July 7, 2019) (Paradise Baxter, J.). As such, this factor weighs in favor of dismissal.
When evaluating the sixth Poulis factor, the Court must consider the potential merits of Plaintiff's claims. A claim will be deemed meritorious "when the allegations of the pleadings, if established at trial, would support recovery by plaintiff." Poulis, 747 F.2d at 869-70. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not the summary judgment standard, is applicable in the Poulis analysis. Briscoe, 538 F.3d at 263. Here, all the Court has before it at this time are the allegations contained in the Complaint, to which the defendants have not had the opportunity to respond since Plaintiff has not taken the necessary steps for the Complaint to be served. However, it is also worth noting that the allegation underlying all of Plaintiff's claims against the defendants—that they violated his rights because they were engaged in a plot to kill him for purposes of collecting the profits on a fraudulent life insurance policy taken out in his name—is not grounded in reason. Any claim dependent on that allegation is likely to be factually frivolous, which is the case "when the facts alleged rise to the level of the irrational or the wholly incredible[.]" Denton v. Hernandez, 504 U.S 25, 33 (1992). Therefore, this factor also weighs in favor of dismissal.
III. Conclusion
In conclusion, the Poulis factors weigh in favor of dismissal. The Court cannot properly control its docket, move this action forward, and properly protect the rights of all parties because Plaintiff has failed to accept mail from the Court, failed to comply with Court orders, and stopped communicating with the Court altogether. Therefore, it is respectfully recommended that the Court dismiss this civil action with prejudice for failure to prosecute.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, any party is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge Dated: May 8, 2020